When the ICC-Prosecutor addressed the Security Council last December (here), she commented on the alleged mass rape of more than 200 women in Tabit, Darfur. In her words, “The recent allegations of rape of approximately 200 women and girls in Tabit should shock this Council into action.” Despite her comment , several members of the Security Council denied these accusations.

Last week Human Rights Watch released “Mass Rape in Darfur“, a report which supports the accusations made by the Prosecutor. Nevertheless, the report does not solve anything. The report details a three-day-attack on Tabit, a small town close to El Fasher in North Darfur once held by rebel forces but as of today controlled by the Sudanese armed forces. According to Human Rights Watch, members of the armed forces stationed close to the city launched an attack on 30 October 2014 that continued until 1 November 2014. During the raid, soldiers gathered the men at the outskirts of the city, where the men were held, beaten and abused. This enabled the troops to rape the women left in the town. Overall, Human Rights Watch fears dozens of victims of war crimes and crimes against humanity as perpetrated by members of the Sudanese armed forces.

One day after the release of the report, the Security Council adopted Resolution 2200 (2015), extending the mandate of the Darfur Panel of Experts. During the debate, the US-representative has addressed the incident at Tabit. However, the Sudanese representative has denied that the incident took place and made recourse to a report by UNAMID which did not find any evidence. He also referred to a letter dated 3 December 2014 from the Permanent Representative of the Sudan to the United Nations addressed to the President of the Security Council. Here, the Special Prosecutor for Crimes in Darfur, a Sudanese official, gives an account of his visit to Tabit. He did not find any evidence pointing to crimes and thus refused to open criminal proceedings. This is in line with UNAMID-reporting. The mission was tasked with investigating the alleged raid and reported back that it did not take place.

While Sudan (and Russia) claim nothing has happened in Tabit, the USA, Human Rights Watch and the ICC are convinced that the crimes took place. They claim that UNAMID was not able to investigate independently, because Sudanese officials were present during the hearings. Likewise, the Special Prosecutor was working together with other Sudanese agencies and did not convey an impartial account of what has happened (or not) in Tabit.

There are two rather easy issues and one more complicated issue at hand.

First of all, the facts need to be established. The report prepared by Human Rights Watch seems to give evidence to the fact that at least something has happened and that this was not properly investigated by the competent domestic authorities.

Second, the legal analysis seems rather easy. Human Rights Watch is correct when it asserts that war crimes and crimes against humanity have been committed.

Third, and that is the problem, the question remains who will investigate and eventually conduct a trial. Sudan has, of course, the primary responsibility to do so. In addition to being the territorial state, Sudan is by way of Resolution 1593 (2005) obliged to investigate these accusations and put alleged perpetrators to trial. However, the Sudanese authorities have put an halt to criminal investigations.

Complementary to the Sudanese jurisdiction the ICC may investigate. But because its jurisdiction is complementary, any past or future Sudanese investigation must be measured against art. 17 (2) Rome Statute. It is then up to the ICC to decide whether “the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice” (art. 17 [2] [c] Rome Statute). That issue may eventually be solved, however, the statement of the Prosecutor from December 2014 remains: She will not open any new investigation in the Darfur-situation (here and here). Thus, there will most likely not be an investigation by the ICC in the Tabit-incident. Given the divide in the Security Council with regard to Darfur in general – and the clear manifestation of the different “beliefs” with regard to Tabit in particular – the Security Council will not support any investigation with regard to Tabit.

Human Rights Watch seems to be aware of this. The recommendation to the ICC is therefore rather short: “The Office of the Prosecutor should investigate, to the extent possible, the allegations of rape and other crimes within the ICC’s mandate.” In addition, Human Rights Watch has lost confidence in the Security Council, which is asked to impose travel bans and asset freezes and to issue a resolution demanding access for UNAMID to Tabit.

An investigation in the crimes as reported by Human Rights Watch seems unlikely. Thus, no one will be held criminally responsible for the incident. The report has shed, however, light on a conflict that is ignored and it highlights the consequences of the Security Council’s inaction. What is the result for the people of Tabit? Unfortunately, there is none.